Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. 37-2008-00086172- CL-PT-CTL, Kenneth K. So, and Rafael A. Arreola, Judges.
McCONNELL, P. J.
INTRODUCTION
Approximately four months after the court mailed a surety formal notice declaring the surety's bail bond forfeited, a court clerk, in response to the surety's informal fax inquiry about the bond's status, mistakenly informed the surety the court had exonerated the bond. The surety contends the court was equitably estopped from entering summary judgment of bail bond forfeiture due to the clerk's error. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Steven Fitch was arrested and charged with distribution of a controlled substance. (Health & Saf. Code, § 11352, subd. (a)). Acting through its agent, The Bail Hotline Bail Bonds (Bondsman), Indiana Lumbermens Mutual Insurance Company (Surety) posted a $25,000 bail bond to secure Fitch's release from custody. On December 4, 2007, Fitch failed to appear in court as required, and the court declared the bond forfeited. The next day the court mailed notice of the forfeiture to Bondsman and Surety in accordance with Penal Code section 1305. The notice stated the forfeiture would become final 180 days from the date of mailing unless an order tolling or setting aside the forfeiture was obtained.
The record is inconsistent as to Fitch's true name. For consistency, we use the name referenced in the parties' briefs.
Further statutory references are to the Penal Code unless otherwise specified.
Approximately four months later, Bondsman sent a handwritten fax to the court inquiring about the status of the Fitch bond. As a courtesy, the court permits bail bond agents to fax such inquiry requests to the court's accounting department. Court clerks review the requests on Fridays and answer them as soon as possible, subject to the prior completion of their regular duties. Eight days after Bondsman sent the inquiry fax, a court clerk sent Bondsman a handwritten response fax mistakenly advising Bondsman the court had exonerated the Fitch bond. The purported date of exoneration was actually the date the court ordered the bond forfeited.
After Fitch failed to appear within the statutory period, the court entered summary judgment of bail bond forfeiture against Surety. Surety filed a motion to set aside the summary judgment and exonerate the bail bond, which the court denied.
Surety appeals, contending the court lacked jurisdiction to enter the summary judgment because of the court clerk's error. In addition, Surety contends the bail bond was exonerated by operation of law because it was entitled to rely on the court clerk's mistaken representation and, having done so, its performance was hindered, delayed, and made practically impossible. We conclude there is no merit to these contentions and affirm the court's order.
In the proceedings below, Surety also contended the court clerk's error entitled it to relief under Code of Civil Procedure section 473; however, Surety did not provide the superior court with any argument or authorities supporting this contention. As Surety has not raised this contention on appeal, we do not address it. Nonetheless, we note other appellate courts that have addressed the issue have concluded Code of Civil Procedure section 473 does not apply to bail forfeiture proceedings. (See, e.g., People v. National Auto. & Cas. Co. (1966) 242 Cal.App.2d 150, 153; People v. Stuyvesant Ins. Co. (1963) 216 Cal.App.2d 380, 382.)
STANDARD OF REVIEW
" 'The abuse of discretion standard applies to the trial court's resolution of a motion to set aside a bail forfeiture [citation], subject to constraints imposed by the bail statutory scheme. "[W]hen a statute requires a court to exercise its jurisdiction in a particular manner, to follow a particular procedure, or to act subject to certain limitations, an act beyond those limits is in excess of its jurisdiction." [Citation.] " 'The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, Penal Code sections... dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.' [¶] The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond." [Citation.]' [Citations.]" (County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 542-543; accord, People v. Bankers Ins. Co (2009) 171 Cal.App.4th 1529, 1532-1533.)
DISCUSSION
I
Entry of Summary Judgment Within Court's Jurisdiction
As relevant to this appeal, the statutory scheme governing the forfeiture of bail bonds provides that the superior court must declare a defendant's bail bond forfeited if the defendant fails without sufficient excuse to appear in court when lawfully required. (§ 1305, subd. (a).) The court clerk must mail notice of the forfeiture to the surety and its bail agent within 30 days of the forfeiture if the amount of the bail bond exceeds $400. (§ 1305, subd. (b).) If the defendant appears in court within 180 days of the declaration of forfeiture or 185 days of the mailing of the notice of forfeiture (appearance period), the court must vacate the forfeiture and exonerate the bond. (§ 1305, subd. (c)(1); People v. American Contractors Indemn. Co. (2004) 33 Cal.4th 653, 658.) Alternatively, the court may reinstate the defendant's bail bond if the court gives prior notice of the reinstatement to the surety and the surety has not surrendered the defendant. (§ 1305, subd. (c)(4).)
During the appearance period, the surety may, on certain grounds, move to vacate the forfeiture and exonerate the bond. (§ 1305, subds. (c)-(g), (i).) The surety may also move to toll or extend the appearance period for good cause. (§ 1305.4.) If the defendant does not appear in court within the appearance period, and the court has not vacated the forfeiture and exonerated the bond or tolled or extended the appearance period, the court must enter summary judgment of forfeiture against the surety. (§ 1306, subd. (a).)
Compliance with sections 1305 and 1306 is jurisdictional and failure to follow these code sections renders a summary judgment of bail bond forfeiture void. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 1492-1493.) Here, Surety has not identified any aspect of these code sections the superior court failed to follow. Accordingly, Surety has not established the court acted without or in excess of its jurisdiction under the statutory scheme when it entered summary judgment against Surety.
II
Court Not Equitably Estopped From Entering Summary Judgment
Surety next contends the bond was exonerated by operation of law because it had a right to rely upon the mistaken information it received from the court clerk and it did so to its detriment. Although not explicitly stated, Surety essentially contends the court was equitably estopped from entering summary judgment against surety.
"A valid claim for equitable estoppel requires: (a) a representation or concealment of material facts; (b) made with knowledge, actual or virtual, of the facts; (c) to a party ignorant, actually and permissibly, of the truth; (d) with the intention, actual or virtual, that the ignorant party act on it; and (e) that party was induced to act on it. [Citation.] There can be no estoppel if one of these elements is missing." (Simmons v. Ghanderi (2008) 44 Cal.4th 570, 584; accord, People v. American Contractors Indem. Co., supra, 136 Cal.App.4th 245, 251.) We conclude Surety has not established a valid claim for equitable estoppel.
The statutory scheme governing bail bond forfeitures does not require a court to provide a surety with informal bond status information. In addition, the record does not show the court's informal bond status inquiry procedures obviated or were intended to obviate a surety's need to review the relevant court records. To the contrary, the statutory scheme authorizes exoneration of a bail bond for a variety of reasons and upon such conditions as may be just. (§ 1305, subds. (c), (f), (g).) These are details not captured by the court's informal bond status inquiry procedures, at least as those procedures are reflected in the record. At most, the court's informal bond status procedures notify a surety further action has occurred on a bail bond. The procedures do not notify the surety of the circumstances of the action or whether the action was subject to conditions affecting the surety. For a surety to discover this information and determine whether it must take steps to protect its statutory rights, the surety must consult the relevant court records. The need for further inquiry was particularly apparent in this case since the exoneration purportedly occurred on the same day as the forfeiture, a discrepancy suggesting the informal information Surety received was not reliable. Consequently, we conclude Surety has not established it was permissibly ignorant of the truth or that the court intended Surety to rely on the information provided through the court's informal bond status inquiry procedures.
County of Orange v. Allied Fidelity Ins. Co. (1984) 161 Cal.App.3d 510, upon which Surety principally relies,is inapposite because the appellate court in that case specifically declined to rule on the equitable estoppel issued presented. Cases are not authority for propositions not considered. (People v. Ceballos (1974) 12 Cal.3d 470, 481).
DISPOSITION
The order is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: HALLER, J., AARON, J.